The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. Pare, 2010 ONCA 563
DATE: 20100830
DOCKET: C50730
COURT OF APPEAL FOR ONTARIO
Rosenberg, Feldman and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Douglas Pare
Respondent
Gavin MacDonald, for the appellant
No one appearing for the respondent
Heard: May 7, 2010
On appeal from acquittal entered by Justice T. David Little of the Superior Court of Justice, dated June 10, 2009.
Rosenberg J.A.:
[1] This is a Crown appeal[^1] from the decision of Little J. acquitting the respondent on a charge of attempting to obstruct the course of justice contrary to s. 139 of the Criminal Code. The trial judge found that the respondent had a friend threaten and offer a benefit to the complainant in a sexual assault case if she would change her story to exonerate the respondent. However, the trial judge acquitted the respondent because he was only attempting to have the complainant tell the truth as he believed it to be. In my view, the trial judge erred in his interpretation of the elements of the offence of s. 139. Accordingly, I would allow the appeal, set aside the acquittal and order a new trial.
THE FACTS
[2] On December 28, 2006, a 16-year-old woman, Ms. Z, complained to the police that she had been sexually assaulted by the respondent about two weeks earlier. A few days later she gave a videotaped statement. In the two weeks prior to December 28, Ms. Z and the respondent engaged in several communications. The essence of the communications was that the respondent believed that Ms. Z was trying to blackmail him by threatening to make false allegations. The respondent told Ms. Z that she could be sued for libel, slander, false prosecution and extortion if she went ahead with her complaint. As indicated, Ms. Z nevertheless did in fact make a complaint to the police about the respondent and he was charged accordingly with sexual assault.
[3] The allegation of attempting to obstruct justice arises out of the activities of an acquaintance of the respondent, Christian Harcus. Mr. Harcus testified that the respondent contacted him and asked him to speak to the complainant and have her retract the "false" complaint. The respondent said that he was wrongfully accused and Mr. Harcus should tell Ms. Z that it was in her best interest to retract her statement. If she didn't then Ms. Z's mother could lose her home when the respondent sued her.
[4] Mr. Harcus accordingly made contact with Ms. Z and after some conversation brought her to the respondent's lawyer's office. Ms. Z told the lawyer that she did not intend to change her statement and that she wanted to speak to the respondent directly. The respondent was in jail at the time. The lawyer refused to arrange the telephone call, asked Ms. Z to leave and told Mr. Harcus that he could get himself in trouble.
[5] Ms. Z gave a somewhat different version of the interaction with Mr. Harcus. She testified that on the way to the lawyer's office, Mr. Harcus told her that if she changed her statement the respondent would provide her with money to go shopping at a local mall. She also testified that she felt intimidated by a threat delivered by Mr. Harcus that she would be sued in the event that she pursued the allegations.
[6] There was no direct evidence from Mr. Harcus about the offer of money to go shopping. However, he had also been charged with attempting to obstruct justice. He pleaded guilty to the charge, and the facts read in by Crown counsel alleged that Mr. Harcus had told Ms. Z that the respondent would sue her, that her mother would lose her house, but that the respondent would pay for a shopping spree if she changed her statement. Mr. Harcus testified that he could not recall whether in fact he told Ms. Z about a shopping spree inducement. He also testified that it was "possible" that the respondent spoke to him about a shopping spree. Mr. Harcus explained that the reason he took Ms. Z to the lawyer's office was because he did not want the respondent to be wrongfully accused nor see Ms. Z lose her house. Mr. Harcus testified as follows in cross-examination:
Q. He [the respondent] told you, in terms of instructions to you, to advise [Ms. Z] number one, that these are false allegations, the sexual assault is a false allegation, correct?
A. Correct.
Q. That she has provided false statements to the police in relation to the sexual assault, correct?
A. Correct.
Q. And if she continues with those false allegations, and that false statement that he will sue her, correct?
A. Correct.
Q. And he asked you to convey that message to [Ms. Z], correct?
A. Correct.
Mr. Harcus also adopted the following passage from his preliminary inquiry testimony:
Q. Okay, did he ever instruct you at all to force her in any manner basically through threats or anything like that to change her statement?
A. No.
Q. Okay, was it left kind of open-ended do you know, I'm going to leave it to your discretion, but what I'm telling you is to convey to [Ms. Z], look it, she's making false statements and unless she changes those false statements I'm going to sue her?
A. Yes.
Q. Did he leave it in your discretion from that point on in terms of how to deal with [Ms. Z]?
A. Yes.
Q. Okay, those were kind of very narrow instructions, and it was up to you to figure out how to bring that about to convey that message.
A. Yes.
THE TRIAL JUDGE'S REASONS
[7] The trial judge referred to Mr. Harcus's guilty plea, in which he admitted to allegations that he relayed a threat of a lawsuit to the complainant and that he offered her benefits if she altered her story. The trial judge then stated that he found that Mr. Harcus had been authorized by the respondent to make the threat of the law suit and provide the inducement of the shopping spree.
[8] The trial judge found that the actus reus of the offence was made out, even though the respondent was only trying to have Ms. Z tell the truth. However, the respondent did not have the requisite mens rea. The trial judge reasoned as follows:
This is a specific intent offence. "Wilfully" means that the offence cannot be proved on the basis of unknowing conduct. The mental element is the specific intent to obstruct justice. No evidence was advanced to show that the necessary mens rea existed at the time the threat and inducement were provided. The accused directly and indirectly only asked the complainant "to tell the truth". There is no evidence before me that the accused did in fact intend to act in a way that would obstruct justice. [Emphasis added.]
ANALYSIS
[9] This case turns on the meaning to be attached to s. 139(3)(a) of the Criminal Code, which provides that every one who, in a judicial proceeding, "dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence" shall be deemed to wilfully attempt to obstruct the course of justice. The gist of the offence is the use of corrupt means to influence a witness. As is said in some of the cases, merely attempting by reasoned argument to have a witness tell the truth is not an offence. But attempting to persuade a witness to change their testimony, even to change the testimony to what the accused believes is the truth, is an offence where the means of persuasion is corrupt. Offering money to a complainant in a criminal case to change her testimony is a classic example of corrupt means. See R. v. Kotch (1990), 1990 ABCA 348, 61 C.C.C. (3d) 132 (Alta. C.A.) at 136.
[10] In my view, the mens rea of the offence is made out where the accused intentionally offers the improper inducement for the purpose of dissuading the witness from giving evidence, even if the accused is merely trying to persuade the witness to tell what the accused believes is the truth. The term "wilfully" requires that the accused act intentionally – for example, that the words used be intended as a threat. More importantly, "wilfully" also requires proof that the threat or inducement was made for the prohibited purpose of dissuading the witness. But the Crown need not prove that the accused otherwise had an improper motive. Equally, it is no defence that the accused's motive was to ensure that the truth was told at the judicial proceeding. For the purposes of this case it is unnecessary to decide whether recklessness would also suffice to establish that the accused acted wilfully. See R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.), at 379-82.
[11] Accordingly, the trial judge erred in acquitting the respondent on the basis that his motive was to ensure that Ms. Z told the truth. Ordinarily, the appropriate disposition, given the trial judge's findings of fact, would be to set aside the acquittal and enter a conviction. However, I am concerned about the basis for the trial judge's finding that Mr. Harcus made the various threats and inducements at the instigation of the respondent. In particular, there was little or no admissible evidence that the respondent had asked Mr. Harcus to offer Ms. Z money for a shopping spree and the trial judge did not identify the evidence he relied upon. At its highest, Mr. Harcus conceded that it was possible that the respondent talked to him about a shopping spree. Mr. Harcus did not adopt as true all the facts read in at his guilty plea proceedings and the trial judge made no express finding that the statements made at those proceedings should be admitted as an exception to the hearsay rule. This court has recently suggested that care should be taken in admitting for their truth facts read in at a witness's guilty plea as an exception to the hearsay rule. See R. v. Tran, 2010 ONCA 471 at paras. 40-3.
[12] It was somewhat clearer that the respondent had instructed Mr. Harcus to tell Ms. Z that if she persisted in her false complaint he would sue her. The more difficult question is whether the respondent had the specific intent to threaten Ms. Z. In other words was this an improper attempt to intimidate the witness by corrupt means or merely an attempt at persuasion? In some circumstances a threat to exercise legal rights by instituting a civil suit could amount to a corrupt means depending upon the accused's intent.[^2] However, because the trial judge misinterpreted the requisite mens rea, he did not make the necessary findings as to whether the respondent instructed Mr. Harcus to threaten Ms. Z.
DISPOSITION
[13] Accordingly, I would allow the appeal, set aside the acquittal and order a new trial.
Signed: "M. Rosenberg J.A."
"I agree K. Feldman J.A."
"I agree David Watt J.A."
RELEASED: "MR" AUGUST 30, 2010
[^1]: The respondent was personally served with the notice of appeal on July 9, 2009. The Crown's materials were sent to his last known address in Ontario on December 23, 2009 and on December 24, 2009. When it became known that the respondent had moved to British Columbia, the Crown's materials were resent to his last known address in British Columbia on January 14, 2010. On April 15, 2010, the Registrar sent a notification of the date of the hearing to the respondent's last known address in British Columbia. The respondent did not appear at the hearing of the appeal.
[^2]: Section 139 contains no saving provision for threats to institute civil proceedings, unlike extortion in s. 346 of the Criminal Code; see s. 346(2).